A Global and Local Outlook
Elgar Intellectual Property Law and Practice series
Edited by Irene Calboli and Jacques de Werra
Chapter 6: COMPETITION, MARKETS, AND TRADEMARK TRANSACTIONS
With respect to the subject of business transactions, trademark law has a cryptic role in the scheme of intellectual property. While trademark’s domain does not include original creations or new inventions, trademark serves a role in the commercialization of copyright’s and patent’s bounty by creating a brand that can be affixed to creative works or inventive products. This chapter explores the role of trademarks, and in turn the role of trademark transactions, in defining the competitive environment, which provides the soil in which innovation occurs. One way to understand trademark’s role in intellectual property is to note its parallels with trade secret. While the two fields are clearly distinct with the obvious distinction being trade secret’s emphasis on private information internal to a firm, and trademark’s focus on publicizing a firm’s wares, they both share a common role in promoting the creation of information. Trade secret’s fruit is valuable information that gives a firm an advantage over competitors. Trademark creates signals, in the forms of words and symbols, which generate information for consumers in typing and identifying products and services in the marketplace. Information under trade secret law defines the productive processes within a firm. The signals protected by trademark create a connection between a firm and consumers. Both trade secret and trademark together shape the supply side and the demand side of a competitive market. Within this market, copyright and patent serve to direct the pace and trajectory of innovation.
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